Enforcement
Workplace Relations Act
Enforcement of decision of adjudication officer
43. (1) If an employer in proceedings in relation to a complaint or dispute referred to an adjudication officer under section 41 fails to carry out the decision of the adjudication officer under that section in relation to the complaint or dispute in accordance with its terms before the expiration of 56 days from the date on which the notice in writing of the decision was given to the parties, the District Court shall—
(a) on application to it in that behalf by the employee concerned or the Commission, or
(b) on application to it in that behalf, with the consent of the employee, by any trade union or excepted body of which the employee is a member,
without hearing the employer or any evidence (other than in relation to the matters aforesaid) make an order directing the employer to carry out the decision in accordance with its terms.
(2) Upon the hearing of an application under this section in relation to a decision of an adjudication officer requiring an employer to reinstate or reengage an employee, the District Court may, instead of making an order directing the employer to carry out the decision in accordance with its terms, make an order directing the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 104 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Act of 1977.
(3) The reference in subsection (1) to a decision of an adjudication officer is a reference to such a decision in relation to which, at the expiration of the time for bringing an appeal against it, no such appeal has been brought, or if such an appeal has been brought it has been abandoned and the references to the date on which notice in writing of the decision was given to the parties shall, in a case where such an appeal is abandoned, be construed as a reference to the date of such abandonment.
(4) The District Court may, in an order under this section, if in all the circumstances it considers it appropriate to do so, where the order relates to the payment of compensation, direct the employer concerned to pay to the employee concerned interest on the compensation at the rate referred to in section 22 of the Act of 1981, in respect of the whole or any part of the period beginning 42 days after the date on which the decision of the adjudication officer is given to the parties and ending on the date of the order.
(5) An application under this section to the District Court shall be made to a judge of the District Court assigned to the District Court district in which the employer concerned ordinarily resides or carries on any profession, business or occupation.
Annotations:
Modifications (not altering text):
C6
Section applied with modifications by Equal Status Act 2000 (8/2000), s. 31; as substituted (1.10.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 18, commenced as per subs. (2) by S.I. No. 410 of 2015.
[31. Section 43 of the Act of 2015 shall apply to a decision under section 25 as it applies to a decision of an adjudication officer under section 41 of that Act, subject to—
(a) the modification that the following paragraph is substituted for paragraph (b) of subsection (1):
‘(b) on application to it in that behalf, with the consent of the complainant, by the Irish Human Rights and Equality Commission,’,
and
(b) the following modifications:
(i) references to a complaint or dispute shall be construed as references to a case so referred;
(ii) the reference to section 41 shall be construed as a reference to section 25 of this Act;
(iii) in subsection (1), the words ‘decision of the Director General of the Workplace Relations Commission under section 25 of this Act’ shall be substituted for the words ‘decision of an adjudication officer under that section’;
(iv) the deletion of subsection (2);
(v) the words ‘decision of the Director General of the Workplace Relations Commission under section 25 of this Act’ shall be substituted for the words ‘decision of an adjudication officer’ in each place that they occur; and
(vi) references to employee and employer shall be construed as references to complainant and respondent respectively.]
Enforcement of decision of Labour Court
45. (1) If an employer fails to carry out in accordance with its terms a decision of the Labour Court in relation to an appeal under section 44 before the expiration of 42 days from the date on which notice of the decision is given to the parties, the District Court shall—
(a) on application to it in that behalf by the employee concerned or the Commission, or
(b) on application to it in that behalf, with the consent of the employee, by any trade union or excepted body of which the complainant is a member,
without hearing the employer or any evidence (other than in relation to the matters aforesaid) make an order directing the employer to carry out the decision in accordance with its terms.
(2) The reference in subsection (1) to a decision of the Labour Court is a reference to such a decision in relation to which, at the expiration of the time for bringing an appeal against it, no such appeal has been brought, or if such an appeal has been brought it has been abandoned and the references to the date on which notice of the decision was given to the parties shall, in a case where such an appeal is abandoned, be construed as a reference to the date of such abandonment.
(3) The District Court may, in an order under this section, if in all the circumstances it considers it appropriate to do so, where the order relates to the payment of compensation, direct the employer concerned to pay to the employee concerned interest on the compensation at the rate referred to in section 22 of the Act of 1981, in respect of the whole or any part of the period beginning 42 days after the date on which the decision of the Labour Court is communicated to the parties and ending on the date of the order.
(4) An application under this section to the District Court shall be made to a judge of the District Court assigned to the District Court district in which the employer concerned ordinarily resides or carries on any profession, business or occupation.
The text in italics on this page is sourced from lawreform.ie and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.
S.I. No. 419/2015 –
Workplace Relations Act 2015 (Fixed Payment Notice) Regulations 2015.
I, RICHARD BRUTON, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by sections 4 and 36 of the Workplace Relations Act 2015 (No. 16 of 2015), hereby make the following regulations:
1. These Regulations may be cited as the Workplace Relations Act 2015 (Fixed Payment Notice) Regulations 2015.
2. In these Regulations “Act of 2015” means the Workplace Relations Act 2015 (No. 16 of 2015).
3. The form set out in the Schedule is prescribed for the purposes of subsection (1) of section 36 of the Act of 2015.
4. (1) The amount of €2,000 is prescribed for the purposes of paragraph (b) of subsection (1) of section 36 of the Act of 2015 in relation to an offence alleged to have been committed under section 11 of the Protection of Employment Act 1977 (No.7 of 1977).
(2) The amount of €1,500 is prescribed for the purposes of paragraph (b) of subsection (1) of section 36 of the Act of 2015 in relation to an offence alleged to have been committed under subsection (4) of section 4 of the Payment of Wages Act 1991 (No.25 of 1991).
(3) The amount of €1,500 is prescribed for the purposes of paragraph (b) of subsection (1) of section 36 of the Act of 2015 in relation to an offence alleged to have been committed under section 23 of the National Minimum Wage Act 2000 (No. 5 of 2000).
SCHEDULE
WORKPLACE RELATIONS ACT 2015 (No. 16 of 2015)
Regulation 2 FIXED PAYMENT NOTICE IN RELATION TO AN ALLEGED OFFENCE UNDER section 11 of the Protection of Employment Act 1977 , subsection (4) of section 4 of the Payment of Wages Act 1991 or section 23 of the National Minimum Wage Act 2000
FPN Ref No.______________
Workplace Relations Commission
1. To:
Name
Name of Legal Entity
Trading as
Address Line 1
Address Line 2
Address Line 3
Address Line 4
2. It is alleged that you have committed a relevant offence, as defined by section 36 (5) of the Workplace Relations Act 2015 (No. 16 of 2015). Details of the relevant offence and associated fixed payment amount to be paid by you are as set out in the table below.
Legislation under which relevant offence occurred:
1
Date of offence
Details of the offence:
2
Grounds for Inspector being satisfied that the relevant offence has occurred:
Prescribed Fixed Payment Amount to be paid:
3
3. You may during the period of 42 days beginning on the date of this notice make to the Commission a payment of the prescribed amount as set out in the table at 2. above accompanied by this notice.
4. Payment must be made by Electronic Fund Transfer to:
Bank of Ireland, 2 College Green, Dublin 2
Account name: Department of Jobs, Enterprise & Innovation Agency/receipts EFT Public Bank.
IBAN IE38 BOFI 900017 61270047
BIC BOFIIE2D
5. You are not obliged to make the payment specified in this notice. However, if you do not make the payment during the period of 42 days beginning on the date of this notice a prosecution in relation to the relevant offence may be instituted.
6. A prosecution in respect of the alleged offence will not be instituted during the period of 42 days beginning on the date of this notice and, if the payment specified in this notice is made during that period, no prosecution in respect of the alleged offence will be instituted.
Inspector4 Dated
/images/ls
GIVEN under my Official Seal
1 October 2015.
RICHARD BRUTON,
Minister for Jobs, Enterprise and Innovation.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
These Regulations prescribe the form of Fixed Payment Notices in lieu of prosecution, if appropriate, and the amount of the fixed payment in each case in relation to alleged offences under section 11 of the Protection of Employment Act 1977 , subsection (4) of section 4 of the Payment of Wages Act 1991 or section 23 of the National Minimum Wage Act 2000 .
1 Insert “section 11 of the Protection of Employment Act 1977”, “subsection (4) of section 4 of the Payment of Wages Act 1991” or “section 23 of the National Minimum Wage Act 2000”.
2 Insert details of the nature of the offence
3 Insert the relevant amount as prescribed under Regulation 4 of the Workplace Relations Act 2015 (Fixed Payment Notice) Regulations 2015
4 Insert the name of the Inspector duly appointed under Section 26 of the Workplace Relations Act 2015
S.I. No. 32/2017 –
Workplace Relations Act 2015 (Fixed Payment Notice) Regulations 2017.
I, PAT BREEN, Minister of State at the Department of Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by sections 4 and 36 of the Workplace Relations Act 2015 (No. 16 of 2015) and the Jobs, Enterprise and Innovation (Delegation of Ministerial Functions) Order 2017 ( S.I. No. 6 of 2017 ), hereby make the following regulations:
1. These Regulations may be cited as the Workplace Relations Act 2015 (Fixed Payment Notice) Regulations 2017.
2. The form set out in the Schedule is prescribed for the purposes of subsection (1) of section 36 of the Workplace Relations Act 2015 .
3. Regulation 3 of, and the Schedule to, the Workplace Relations Act 2015 (Fixed Payment Notice) Regulations 2015 ( S.I. No. 419 of 2015 ) are revoked.
SCHEDULE
Prescribed Fixed Payment Notice
WORKPLACE RELATIONS ACT 2015 (No. 16 of 2015)
Regulation 2 FIXED PAYMENT NOTICE IN RELATION TO AN ALLEGED OFFENCE UNDER SECTION 11 OF THE PROTECTION OF EMPLOYMENT ACT 1977, SUBSECTION (4) OF SECTION 4 OF THE PAYMENT OF WAGES ACT 1991 OR SECTION 23 OF THE NATIONAL MINIMUM WAGE ACT 2000
FPN Ref. No.
Workplace Relations Commission
1. To:
Name
Name of Legal Entity
Trading as
Address Line 1
Address Line 2
Address Line 3
Address Line 4
2. It is alleged that you have committed a relevant offence, as defined by section 36 (5) of the Workplace Relations Act 2015 (No. 16 of 2015). Details of the relevant offence and associated fixed payment amount to be paid by you are as set out in the table below.
Legislation under which relevant offence occurred:
Date of offence
Details of the offence:
Grounds for Inspector being satisfied that the relevant offence has occurred:
Prescribed Fixed Payment Amount to be paid:
3. You may during the period of 42 days beginning on the date of this notice make to the Commission a payment of the prescribed amount as set out in the table at 2. above accompanied by this notice.
4. Payment may be made by Electronic Fund Transfer to:
Danske Bank, International House, 3 Harbourmaster Place, IFSC, Dublin 1
Account name: DJEI Danske EFT Receipts Public B/A.
IBAN IE24 DABA95199030010413
BIC DABAIE2D
You may contact the Workplace Relations Commission (Telephone (059) 917 8967) for assistance in relation to making payments.
5. You are not obliged to make the payment specified in this notice. However, if you do not make the payment during the period of 42 days beginning on the date of this notice a prosecution in relation to the relevant offence may be instituted.
6. A prosecution in respect of the alleged offence will not be instituted during the period of 42 days beginning on the date of this notice and, if the payment specified in this notice is made during that period, no prosecution in respect of the alleged offence will be instituted.
______________ ______________
Inspector Dated
/images/ls
GIVEN under my hand,
2 February 2017.
PAT BREEN,
Minister of State at the Department of Jobs, Enterprise and Innovation.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
Section 36 (1) of the Workplace Relations Act 2015 provides that, where an inspector has reasonable grounds for believing that a person has committed a relevant offence, the inspector may give to the person a Fixed Payment Notice in the prescribed form for each of these offences.
The Workplace Relations Act 2015 (Fixed Payment Notice) Regulations 2015 prescribe the form of Fixed Payment Notices in lieu of prosecution, if appropriate, and the amount of the fixed payment in each case in relation to alleged offences under the aforementioned legislation.
These Regulations revoke the prescribed form set out in the Schedule to the Workplace Relations Act 2015 (Fixed Payment Notice) Regulations 2015 and substitute an amended prescribed form for the purposes of Section 36 (1) of the Workplace Relations Act 2015 . The prescribed form has been amended at Paragraph 4 to incorporate a change in the banking details relating to the making of payments by electronic funds transfer.
Thomas Quinlan t/a Affordable Live-in Homecare v Workplace Relations Commission
CNN191
Labour Court
11 March 2019
[2019] 30 E.L.R. 158
March 11, 2019
This matter came before the Court as an appeal by Thomas Quinlan t/a Affordable Live-in Homecare (the “appellant”) against a compliance notice issued by the Workplace Relations Commission (the “respondent”) in accordance with the Workplace Relations Act 2015 (the “Act”) at s.28(1).
The compliance notice was dated 13 July 2018 and confirmed that an inspector of the respondent was of the opinion that the appellant had contravened the Organisation of Working Time Act 1997 (“the Act of 1997”) at s.21. The order required the appellant to calculate and pay any unpaid amounts due to two former employees and to submit documentary evidence/proof of compliance.
It is common case that the appellant did not afford the public holiday *160 entitlements required by the Act of 1997 at s.21 to two named individuals. Those individuals had come to the co-located home and business premises of the respondent during 2017.
Ground of appeal
The appellant submitted that neither of the two persons identified in the respondent’s compliance notice had been an employee of the appellant within the meaning of s.2 of the Act of 1997 and consequently that s.21 of the Act of 1997 had no application to the appellant in respect of those persons.
The respondent submitted that the two persons identified in the compliance notice were employees of the appellant and consequently the Act at s.21 had application to the appellant in respect of the employment of the two individuals.
In view of the fact that it is common case that no annual leave entitlements were afforded to the two named individuals the within matter will turn on whether the relationship between the appellant and the two individuals referred to in the compliance notice was that of employer and employee as defined in the Act of 1997.
Summary position of the appellant
The appellant submitted that no employment relationship existed at any material time or ever between the appellant and the two persons in respect of whom an alleged breach of the Act of 1997 at s.19(1) is the subject of the compliance notice at issue in the within appeal.
The appellant submitted that the two persons were volunteers who came to work in Ireland from Italy and Spain in order to obtain experience of living abroad and to learn English. The appellant operated a business from premises which comprised his co-located home and business. The two persons were accommodated in the family home and developed the habit of coming to the business area of the premises in the mornings and engaging with the appellant and the two staff employed in the business.
The appellant submitted that his co-located home and business were in a very rural area and the two persons commonly came to the business part of the premises in order to interact with the people who were working there. He submitted that no part of the tasks carried out voluntarily by the two persons when they visited the business had any economic value and such tasks were by way of finding something to occupy them. They were not required to attend the business and neither were they required to carry out any tasks or to “help out” around the house. They were afforded access to the appellant’s car and they were free to do as they pleased throughout their stay.
The appellant submitted that his motivation for offering the opportunity to the two persons to come to his home derived from his own experience of similar foreign travel and the fact that he is a qualified English teacher. He submitted *161 that he lived in the rural location with his wife and young child and felt that his family would also benefit from the presence of other people in the family home.
The appellant submitted sworn statements from both individuals who stated therein that they had never been an employee of the appellant. The respondent had no statutory capacity to impose an employment contract on parties who neither seek nor want such a contract.
The appellant submitted that the inspector of the respondent who had issued the compliance notice had never spoken to or otherwise engaged with either person whose alleged employment was the subject of the compliance notice at issue in this case.
The appellant submitted that there were two employees of the business in addition to the appellant at the material time and the inspector had spoken to neither employee at any time.
Summary testimony on behalf of the appellant
The appellant gave evidence as follows.
He had made contact with the two persons through an international website called “Workaway”. He lives in the countryside and wanted the benefit of their interaction for his family through their involvement with the day-to-day life of the family.
He said that no employment relationship existed with either individual and they were free to make use of their time at his co-located home and business in whatever way they chose. Both individuals came to the office part of his premises most days although they were not obliged to do so. The appellant found tasks for them to do such as scanning and photocopying documents and some research on other countries by way of information gathering. He could not have employed either person because they could not speak English and the capacity to be accurate when using the English language was critical for employees of his business. He said that when they left his home he did not recruit anybody to his business as a replacement.
Under cross-examination the appellant said that neither person ever answered a phone in his business.
He said that they did not have English and could not answer a phone in his business. They never filed papers because they could not read English.
He confirmed that whenever they scanned or photocopied documents he asked them to do so. He said that he was trying to find something for them to do when they would come from his home into the office space.
He said that he never designated a time for them to come to the office but that they developed the habit of coming into the office area during the mornings. They could have stayed in bed during the mornings and sometimes did. He said that the two volunteers spent approximately 20 to 25 hours per week between *162 the office part of his premises and his home.
He rejected the proposition that in a mail of 14 November 2017 he agreed that he employed the two persons. He said that his mail on that date was hypothetical.
In response to questioning by the court the appellant said that apart from spending time in the office part of his premises the two persons spent time in his co-located home and sometimes minded his child and sometimes ran errands as part of their interaction with his family. He said the inspector never asked him for specific detail as regards what the two persons were doing while in his home and co-located business premises. He estimated that in the mornings they may have spent 65 per cent of their time in the office area and 30 per cent of their time in his home where they minded his child on occasion and 5 per cent of time running occasional errands to the local village shop mainly and using the appellant’s car.
Summary position of the respondent
The respondent submitted that the two persons referred to in the compliance notice worked under a contract of employment with the appellant and were entitled to the protection of relevant legislation including the Act of 1997.
The respondent set out details of a website called “Workaway.info” which it submitted was the means of initial contact between the appellant and the two individuals who were referred to in the compliance notice. An inspector of the respondent, Ms MD, carried out an inspection of available employment records on 9 November 2017. She advised the appellant by mail of 14 November that the two individuals were considered to be employees of the appellant. The respondent submitted that the two individuals worked between 20 and 25 hours per week in the period from July to December 2017 in the case of one person and from October 2017 to December 2017 in the case of the other. The two carried out marketing and general office duties. The respondent submitted that the 20 to 25 hours per week involved can be classified as working time and work within the meaning of the Act of 1997. The respondent referred the court to the definitions of employee and employer set out in the Act of 1997 and asked the court to consider what it called the common law control test and submitted that the two individuals were subject to control over when, where and how (the means and method) to perform the work.
It was submitted that the two individuals worked at the appellant’s place of business and that this implies that the appellant had control. Similarly, the respondent submitted that the two individuals used the appellant’s resources and facilities to perform the work they carried out and this tended to show the existence of an employer/employee relationship. The respondent submitted that the two individuals were an integral part of the appellant’s business. The respondent also submitted that persons whose hours of work are set by the *163 employer are usually employees. The respondent submitted that the nature of the relationship between the appellant and the two individuals should be objectively evaluated by reference to the realities of the situation and submitted that the acknowledged absence of any written form of contract could not be determinative of the matter. Neither could the fact that the two individuals described themselves as volunteers be considered relevant.
The respondent asked the court to imagine two different scenarios which involved hypothetical situations. In addition, the respondent asked the court to consider the precarious situation in which so called “volunteers” find themselves in this jurisdiction and the detriment which may be occasioned to them.
Summary testimony on behalf of the respondent
Ms MD, an inspector of the respondent, gave evidence on behalf of the respondent. She said that she conducted an inspection at the offices of the appellant’s adviser on 9 November 2017. She examined available employment records. Those records did not relate to the two individuals but the appellant, during that inspection, told her that the two individuals carried out general office and marketing work and that they worked for 20 to 25 hours per week. This description suggested an employee rather than a volunteer role.
She assumed that the two individuals would have to be told by the appellant as to how to carry out the work and she took that into account in reaching a conclusion that the two individuals were employees of the appellant. She also took account of the fact that he had said they worked 20 to 25 hours per week although that factor was not determinative. Even if they worked for only five hours per week they could have been employees.
Under cross-examination Ms MD confirmed that she had no information in respect of the two individuals other than the words of the appellant at the inspection meeting on 9 November 2017. She confirmed that she had advised the appellant by e-mail on 14 November that the two individuals were considered to be employees but that she had no additional information on 14 November beyond that which had been said by the appellant on 9 November. She said that maybe she should have interviewed the two individuals and/or the other employees of the appellant but said that sometimes interviews are not helpful. She said that she does not decide such matters on the basis of what is said at interviews. She said that interviews may have helped her but such interviews would not have been determinative of her decision as regards whether the two individuals should be deemed employees. She said that it might have been better if she had spoken with the two individuals and the two other employees of the appellant.
Such interviews might have been a factor in her decision if they had taken place but they would not have been the main factor.
She confirmed that the only matters considered by her in coming to her *164 conclusion were the two individuals’ involvement in office work. She said that she could not imagine that the two individuals would have attended other than at times set by the appellant.
She said that she at no time had knowledge of any detail as to what was meant by the appellant when he said that the two individuals were involved in general office and marketing work.
The Law
The Act of 1997 at s.2 in relevant part provides as follows:
“(1) …
‘contract of employment’ means—
(a) a contract of service or apprenticeship, and
(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract), whether the contract is express or implied and if express, whether it is oral or in writing;
… ‘employee’ means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act and the Activities of Doctors in Training Regulations, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to be an employee employed by the State or Government, as the case maybe, and an officer or servant of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), or of a harbour authority, health board or a member of staff of an education and training board shall be deemed to be an employee employed by the authority, board or committee, as the case may be;
‘employer’ means in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of ‘contract of employment’ is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer …”
The compliance notice at issue before the Court stated that a contravention of the Act of 1997 at s.19(1) had occurred.
The Act of 1997 at s.21 provides as follows: *165
“(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
(a) a paid day off on that day,
(b) a paid day off within a month of that day,
(c) an additional day of annual leave,
(d) an additional day’s pay:
Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.
(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.
(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay.
(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of five weeks ending on the day before that public holiday.
(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.
(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.”
The Act at s.28(1) and 28(2) provides as follows:
“(1) Where an inspector is satisfied that an employer has, in relation to any of his or her employees, contravened a provision to which this section applies, the inspector may serve a notice (in this section referred to as a ‘compliance notice’) on the employer.
(2) A compliance notice shall—
(a) state the grounds for the inspector’s being satisfied that there has been a contravention referred to in subsection (1),
(b) for the purpose of ensuring compliance by the employer concerned with a provision to which this section applies, require the employer to do or *166 refrain from doing such act or acts as is or are specified in the notice by such date as is so specified, and
(c) contain information regarding the bringing of an appeal under subsection (7) against the notice, including the manner in which an appeal shall be brought.”
Discussion and conclusions
For the Act of 1997 at s.21 to have effect upon the relationship between the appellant and the two individuals it is necessary that the appellant be, within the meaning of the Act, the employer of those two persons and, axiomatically, that they be employees of the appellant within the meaning of the Act. It follows that the within matter turns on the question of the nature of the relationship between these parties.
The parties to the within appeal have submitted contradictory assertions as regards that relationship and the Court has heard testimony from the appellant and respondent in that regard.
Testimony from the respondent’s inspector can be summarised as being to the effect that she formed a conclusion that the appellant was the employer of the two individuals on the basis of a comment by the appellant at a meeting on 9 November 2017 when he said that the two carried out administrative and marketing work for the appellant. The respondent’s inspector also took into account the statement by the appellant at the same meeting that the two worked for him for approximately 20 to 25 hours per week. In addition, the respondent’s inspector took account of e-mails which she received following her written communication of 14 November 2017 wherein she deemed the two to be employees of the appellant. The respondent’s inspector, in evidence, confirmed that she had never spoken to either of the two individuals or otherwise communicated with them and she had never issued to either a standard questionnaire.
She said in evidence that perhaps she should have spoken to them and it may have been better if she had. She confirmed in evidence that she had had no knowledge of the detail of the work carried out by either individual prior to her written communication of 14 November 2017. She said that she imagined that the appellant had control over the working activities of both individuals and could not have imagined it to be any other way.
The appellant gave evidence as to the relationship between him and the two individuals. He said that he had participated in cultural exchanges himself as a younger person and wanted to do the same for Mr A and Ms B. He said that he lived in a very rural area and felt that such exchanges held benefits for himself and his family as well as for Mr A and Ms B.
The appellant gave direct evidence that he placed no requirements upon the two individuals as regards the performance of work and placed no requirement *167 upon them to be available to perform work at any set time. He gave evidence that his business and home were co-located and that the two individuals developed the habit of coming to the business part of the premises to interact with himself and the two employees of his business. He stated that he did give them straightforward tasks to perform by way of “finding something for them to do”. He gave evidence that the two individuals made no economic contribution to his business and he did not recruit anybody to replace them when they left in December 2017. He gave evidence that the two individuals were free to do as they chose while they resided in his home and had no obligation to perform any work.
The court notes that the two individuals have supplied sworn statements to the effect that they were not involved in an employment relationship with the appellant. The Court does not elevate these statements to the status of evidence but they do tend to be probative of the intention of the two individuals at the material time. The intention of the parties however is not the matter which the court must concern itself. As held by Carroll J. in In re Sunday Tribune Ltd [1984] I.R. 505 at 508: “the Court must look at the realities of the situation in order to determine whether the relationship of employer and employee in fact exists, and it must do so regardless of how the parties describe themselves”.
The appellant and respondent disagree fundamentally on the realities of the relationship at issue herein. The court has heard direct evidence from the appellant wherein it has been asserted that no control was exerted by the appellant over the individuals and that they were not integrated into his business. He has given evidence that, on most days, they did spend time in the office part of his premises but that any work they carried out was incidental and of no economic value. He has given evidence that no obligation was placed upon either individual to attend at the business at any set time or at all. The respondent has given evidence that the inspector concerned did not speak or otherwise interact with the two individuals involved or the other employees of the appellant. She testified that she had no direct knowledge of the working arrangements if any of the two individuals and had no detail of the work they were alleged to be carrying out other than what had been said to her by the appellant at a meeting during her inspection of 9 November 2017.
The court has considered the evidence presented by the parties and concludes that the direct evidence of the appellant must be preferred over what in essence was presumption of the inspector based on a comment of the appellant. The inspector was unable to proffer any evidence which could contradict the assertions in evidence of the appellant that the two individuals were not under the control of the appellant and were not required to carry out any task or work while living in the appellant’s home which was co-located with his business. That evidence was to the effect that no mutuality of obligation existed between *168 the appellant and two individuals and the appellant exerted no control over either individual in terms of the performance of any tasks or work.
Of less significance but nevertheless important was the fact that the inspector was unable to contradict the evidence of the appellant that the two individuals made no economic contribution to his business.
In all of the circumstances and based on the submissions and evidence, the court concludes, on the balance ofprobability, that neither of the two individuals referred to in the compliance notice were employees of the appellant within the meaning of the Act of 1997.
Consequently, the court finds that the compliance notice at issue in the within appeal must be withdrawn.
Determination
The court, in accordance with the act at s.28(10)(b), determines that the compliance notice at issue in the within appeal be withdrawn.
The court so determines.
Representation